Jonathan Turley Comes to the Defense of Free Speech

The July 2022 issue of the Harvard Journal of Law & Public Policy features an incisive article by George Washington University Law Professor Jonathan Turley titled "Harm and Hegemony: The Decline of Free Speech in the United States." In his 132-page article, Professor Turley looks at the growing and regrettably successful anti-free speech movement spearheaded by academics, politicians, and major corporations – particularly "Big Tech" companies. He examines and critiques the rising anti-free speech movement's "harm principle" for rationalizing crass censorship and the suppression of opposing viewpoints in public venues – including universities and the Internet – where freedom of speech previously has been widely affirmed as good in itself and vital to a free society of free people.  

Professor Hurley proposes ways to protect free speech through legislation. He writes: "There is a role for the government in reinforcing traditional enclaves for the exercise of the freedom of expression in our society. Indeed, with the rise of massive private systems of censorship, free speech may now depend on the government more than at any time in our history." Regarding physical marketplaces, Professor Turley's recommendations include legislation to protect public political expression from violent threats and actions by third parties that intend to prevent their exercise of free speech by incentivizing engagement by state law enforcement – or perhaps by federal law enforcement in the event that local law enforcement fail to arrest or prosecute third parties that engage in such violence. 

As for virtual marketplaces, Professor Turley observes the significant extent to which online companies such as Facebook, Twitter, and YouTube (Google) have embraced suppression of speech on the Internet. According to Professor Turley: "The expansive view of harmful speech on the Internet has led to one of the largest censorship systems in history." This rings true for anyone who has been paying attention to the behavior of major social media platforms and it should be disturbing to anyone who has valued freedom of speech on the Internet. To address the problem of online censorship and overt bias by dominant social media platforms, he recommends legislation to recognize some form of public forum protections for users of those platforms –perhaps by tying legal immunity protections for content moderation to case law protecting speech from government restrictions or by establishing a basic viewpoint neutrality requirement.

Underlying Prof. Turley's thoughtful approach is a close reading of First Amendment decisions –such as Miami Herald Publishing Co. v. Tornillo (1974), Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995) Rumsfeld v. Forum for Academic & Institutional Rights, Inc. (2006) – from which he draws a distinction between government improperly "compelling" private speakers to speak messages with which they disagree from government permissibly "coercing" free speech forums of content neutrality and protection. Writes Professor Turley: 

The focus should be on preserving neutral forums on the Internet such as social media sites rather than forcing companies to publish a balance of views. This is the difference between a focus on limiting viewpoint censorship and the compulsion of viewpoint expression.

Notably, in NetChoice, LLC v. Paxton (2022), the U.S. Court of Appeals for the Fifth Circuit deduced from Tornillo, Hurley, Rumsfeld, and several other First Amendment decisions the same basic distinction identified by Professor Turley. In NetChoice, the court wrote that "the State may not force a private speaker to speak someone else's message… [b]ut the State can regulate conduct in a way that requires that private entities to host, transmit, or otherwise facilitate speech." (Free State Foundation President Randolph May offered his view of the Fifth Circuit's decision in his September 28 Perspectives from FSF Scholars, "Thinking Clearly and Speaking Freely – Part 12: Shining a Spotlight on Big Tech's Section 230 Immunity.")

If the reading of First Amendment case law by Professor Turley and by the Fifth Circuit hold, federal or state legislation establishing public forum protections for users of major social media platforms likely will pass constitutional muster so long as social media platforms are not compelled to speak and legislation focuses on promoting the speech of their users. Indeed, the viability of the distinction between compelling and facilitating speech may come down to a future decision by the Supreme Court, should it end up reviewing the Fifth Circuit's decision in NetChoice and the Eleventh Circuit's decision regarding Florida's law regulating social media. 

Law professors should be among the first ranks in defending the First Amendment as well as the freedom to speak without bullying by angry mobs or social media companies. After all, their vocation vitally depends on the ability to freely speak and publish. One should hope and expect that years spent dedicated to the study of law would lead legal academics to treasure the freedom of speech as a pillar of American constitutionalism and as a blessing to the people of America. Yet genuine affirmations of the importance of freedom of speech and rebukes against censorship seem to be rare. Thankfully, Professor Turley has stepped up to call out the dangers from the anti-speech movement and posit some constructive proposals for protecting the freedom of speech.